Archive for the 'Law' Category

Our second instalment of ‘Facebook and the Law’ examines the ‘privacy’ of private messages, questions how legal it is to Facebook the ‘hottie’ who has just arrived for an interview and looks at legacy issues of posting photographs online.

So just how ‘private’ are your private messages?

Facebook has recently updated it’s privacy policy to come into line with the formal requirements of EU privacy law, and as the site has expanded it’s features, the Privacy Policy and Terms of Use have expanded with it. Litigation is currently underway in America, where the courts are considering whether a person’s messages and wall posts can be accessed by attorneys in criminal cases. Until now Facebook’s private messages have operated in a grey area of the law, it being unclear whether they have the same legal status as emails, or instead have the higher degree of security one can claim with privately written letters. If it is found they are admissible as evidence, the myth that Facebook operates a ‘private’ system of communication will be irrevocably shattered.

Is Employing Facebook legal?

We’ve also heard the scare stories about potential employers using Facebook to ‘check up’ on candidates for jobs, and indeed it’s not hard to imagine HR departments logging on to see if someone’s Facebook profile matches the CV before them. But is this allowed? Well it is mentionned in the Facebook Terms of Agreement that you may use the site “solely for your personal, non-commercial use”. The key word here is ‘commerical’, and whether the act of looking at the profile of a candidate is a ‘commercial’ practice. If it is found so, then any HR departments indulging in this practice could be breaching Facebook’s Terms of Use, and technically operating unlawfully. Again this is currently a grey area of the law – for example does the location of the computer used to access the profile matter? Even if it is illegal to use Facebook at work, what’s to stop HR personnel merely logging on at home or in an internet café? Afterall, the privacy policy states that “We are not responsible for circumvention of any privacy settings or security measures contained on the site”. However, until litigation provides us with a precedent we can merely speculate on this point.

Smile for the masses – your photos are fair game.

So just how private are all those embarrassing photographs you have tagged of yourself on Facebook? Well many an aspiring public figure or celebrity should be aware that the embarrassing photos of his/her drunken university days will be inevitably dug up by the tabloid press in the future, and here again, the myth that these photos are private should be taken with a pinch of salt. If a photo has been made widely available for people to see on Facebook, then the individuals concerned are unlikely to have any right of privacy in the picture, as it will have already been published to a potentially sizeable audience (potentially all of Facebook’s 20 million users). Effectively, your photos are in the public domain, and as such cannot be granted the title ‘private’. The rationale is this: If journalists do not know who the photographer or even the subject(s) of the picture are, but are still able to view the picture, it is hard to imagine how the picture could qualify as “private” in the eyes of the law. Of course, we are yet to see a case where Article 8 of the European Convention of Human Rights (the right to private life) is evoked in relation to a newspaper or website printing a photo from Facebook without the permission of the subjects, and so again a definitive answer to this question for UK users of the site has yet to be offered by the courts.

Thinking about suggesting some Facebook work to a client? Make sure you read the latest post from our resident PR and Comms legal expert.

Facebook

The world of PR has been invaded with ‘New Media’ and with so many social networking sites springing up in the last couple of years it’s easy to see why it’s not just the geeks who are excited. It was the rapidly expanding Facebook which was the nurturing ground for this very blog.

However, before PR agencies start promising the ‘new media’ world to clients, caution should be applied to ANY work involving Facebook.

Wait before you write that wall post

Just over a month ago in late May, the UK’s first libel award against someone who had posted a comment on a social networking site was granted when a retired teacher successfully sued a former student who had posted defamatory comments about him on Friends Reunited. Reacting to this, just last week Keele University sent an open letter to all students warning them against placing defamatory comments about their lecturers on Facebook. This is merely a sign of things to come, and the real winners from social networking could turn out to be the Lawyers!

Take Care over the Copyright

Everyone ticks the ‘I have permission to reproduce this photograph’ box without a care in the world. However, if you use a picture from Facebook without the owner’s permission, you run the risk of violating the copyright of the photo. All photos put online are, in theory, owned by the person who took the photograph, and they are granted an automatic copyright over the image for their lifetime, plus up to 25 years after they die.

A key thing to remember: just because a Facebook user has uploaded a photo does not automatically mean they have given their consent for it to be used away from the site. The only foolproof way to use an image is to directly ask the owner for permission to use it, even though that is exceptionally difficult considering the scattered nature of Facebook users.

In the wider media, there have been instances where permission has been deemed unnecessary due to a “public interest”, for an image to be published. There has been a plethora of litigation on this point since the advent of the Human Rights Act, in 1998, specifically in relation to celebrities and paparazzi photographs (eg. Douglass and Zeta-Jones vs OK! and Naomi Campbell vs Mirror Group Newspapers), but again in the case of social networking sites, precedent has yet to be set on this issue. At this stage, the definition of what lies within the ‘public interest’ is exceptionally hard to pinpoint.

Are the really out to get us?

The internet conspiracy theorists have also been getting over-excited with Facebook’s assertion that it “may…collect information about you from other sources, such as newspapers, blogs, instant messaging services, and other users of the Facebook…in order to provide you with more useful information and a more personalized experience”. The more technically minded of the internet community have been speculating that Facebook has been allowing the CIA/The New World Order/Aliens to use the site for ‘data mining’ (the downloading of the vasts amounts of personal information to third parties without the knowledge of users). However, Facebook have publicly stated that this clause will soon be removed from an updated Privacy Policy, putting these rumors somewhat to bed. However, Facebook has not commented directly on the future of the clause which states “We may share your information with third parties, including responsible companies with which we have a relationship.” Facebook have again publicly denied actively sharing user information, but remains to be seen if this ambiguously worded section will also be modified or removed.

Conclusion:

1.When writing Wall Posts, never put anything there that you would not put on a postcard

2.If you want to use a photograph from Facebook, at the very least credit the site, if not the person who originally uploaded the picture, if you cannot contact them directly.

3.Somewhat obviously, do not reveal deeply personal information on your homepage, it really could come back to haunt you if you do.